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Aboriginal Peoples


Tax Court judge erred in attaching significant weight to fact that fish sold off-reserve

Taxpayer, status Indian and member of Grand Rapids First Nation, lived all his life on Grand Rapids Reserve. Tax Court of Canada judge rejected taxpayer’s submission that Minister of National Revenue erred by including in his income for 2001 and 2002 taxation years he earned from his commercial fishing business. Tax Court Judge concluded that impugned income not situated on reserve and not, therefore, exempt from tax under s. 87(1)(b) of Indian Act (Can.). He held that taxpayer’s fishing activity carried on in commercial mainstream as he caught fish off reserve, spent most working time during fishing season off reserve and sold entire catch to corporation, Freshwater, located off reserve. Taxpayer’s appeal allowed. Taxpayer was member of Grand Rapids Fishermen’s Co-op, an on-reserve institution. Co-op employs own workers to staff administrative office and packing station, both located on reserve. It assists fishers by providing them with supplies on credit basis and acts as agent in buying and selling of fish. Co-op grades, sorts and packs fish brought by its members. Freshwater collects fish from Co-op’s on-reserve packing station and sells fish in domestic and international markets. Freshwater transfers money to Co-op based on receipts issued by Co-op to fishers. Tax Court Judge erred in attaching significant weight to fact that all fish sold off-reserve. What Freshwater did with fish after purchasing them largely irrelevant for determining situs of fishing business income. Judge also attached more significance to Freshwater as customer than to Co-op, the on-reserve institution which played critical and pervasive role in all aspects of members’ fishing businesses. Even if earned in “commercial mainstream”, taxpayer’s income sufficiently closely connected to reserve to be situated there for purposes of income tax exemption.

Ballantyne v. Canada (Mar. 20, 2012, F.C.A., Evans, Pelletier and Layden-Stevenson JJ.A., File No. A-362-09) Decision at 178 A.C.W.S. (3d) 498 was reversed. 214 A.C.W.S. (3d) 660 (8 pp.).

Industrial and Intellectual Property


Undue weight not given to dictionary definition of “object”

Appeal by respondent from decision granting application under s. 6 of Patented Medicines (Notice of Compliance) Regulations (Can.), for prohibition order. Order prohibited issuance of Notice of Compliance to respondent to sell its version of anastrozole in Canada until after expiry of patent. Parties disputed interpretation of sentence in patent specification “It is a particular object of the present invention to provide aromatase inhibitory compounds with fewer undesirable side effects than [AG]”. Judge agreed with applicant that “object of the invention” refers to forward-looking or aspirational aim of invention and was not promise that anastrozole had achieved goal by date of filing. Judge concluded that respondent’s allegation that patent was invalid for lack of utility was not justified. Appeal dismissed. Application judge did not err in construction of patent’s promise. Undue weight not given to dictionary definition of “object”. Judge relied on dictionary definitions and synonyms to confirm that in its ordinary usage, “object” capable of bearing meaning he assigned to it based on other considerations. Examination of patent as whole supported conclusion that, unlike express claims of patent, object clause contained no more than forward-looking aim of invention. Fact that side-effects not mentioned elsewhere in patent was telling. Fact that pharmaceutical industry was seeking solution to particular problem would not lead POSITA to necessarily think “particular object” was that anastrozole solved one of most pressing research problems of the day. Judge did not err in preferring evidence of expert who testified that object clause set out long-term aim of producing fewer side effects. Meaning of expert’s alleged concession far from clear. Judge’s reasons, read in entirety, not internally incoherent.

Astrazeneca Canada, Inc. v. Mylan Pharmaceuticals ULC
(Apr. 11, 2012, F.C.A., Evans, Sharlow and Dawson JJ.A., File No. A-344-11) Decision at 205 A.C.W.S. (3d) 1065 was affirmed. 214 A.C.W.S. (3d) 588 (17 pp.).

Human Rights Legislation


No error in appreciation of relevance of settlement agreement to reasonableness of decision

Appeal by employee from dismissal of application for judicial review of decision of Canadian Human Rights Commission not to deal with complaint. Commission found that employee had entered into settlement agreement with former employer which included agreement to withdraw complaint. Commission also found no evidence to support allegation that employee signed agreement under duress, fear and anguish, noting that she was represented by counsel throughout negotiations. Appeal dismissed. Application judge identified appropriate standards of review as being correctness on questions of procedural fairness and reasonableness for substance of decision. Judge applied standards correctly. Employee incorrect that there was no information before commission to contradict assertions of duress, fear and anguish. Judge did not ignore those allegations or claim that commission investigator was biased. E-mail from investigator to employer fell far short of establishing bias. No palpable and overriding error in judge’s assessment of evidence. No error in appreciation of relevance of settlement agreement to reasonableness of commission’s decision. No principled basis for employee to argue that investigative report must be more thorough where complaint dismissed under s. 41 rather than under s. 44. Open to commission to find that complaint “trivial, frivolous, vexatious or in bad faith” as employee sought to litigate settled issue.

Exeter v. Canada (Attorney General) (Apr. 20, 2012, F.C.A., Sharlow, Dawson and Stratas JJ.A., File No. A-84-11) Decision at 198 A.C.W.S. (3d) 793 was affirmed. 214 A.C.W.S. (3d) 532 (13 pp.).

Constitutional Law


Duty to consult only arises when possibility that action may harm aboriginal right

Commission renewed for period of eight years uranium mining and mill operating licence issued ten years earlier to AREVA. Commission also revoked Midwest uranium site preparation licence and incorporated into AREVA’s McClean Lake licence maintenance and caretaking activities at Midwest site. Appellants’ principal ground of appeal was that commission’s decision was erroneous in law because it was made in breach of their constitutional right to be consulted before any action was taken by federal Crown that might harm aboriginal or treaty right protected by s. 35 of Canadian Charter of Rights and Freedoms. Appellants also alleged that judge denied them fair opportunity to make submissions before deciding not to recuse himself on ground that his son was articling student at firm representing AREVA. Judge disclosed fact of his son’s employment at start of hearing and revealed that he had discussed issue with his Chief Justice, who shared his view that recusal was not warranted. Appeal was dismissed. Judge acted entirely properly in deciding not to recuse himself. Judges need not hear submissions from parties before deciding whether to recuse themselves on basis of facts that they have themselves disclosed. Judge made no error warranting interference of when he held that appellants had not established that any of them, including three First Nations appellants, had right to be consulted on facts of this case before commission renewed AREVA’s licence under Nuclear Safety and Control Act (Can.), and revoked Midwest’s licence and incorporated it into AREVA’s. Duty to consult only arises when there is evidence of possibility that proposed action may harm aboriginal or treaty right. Commission found no such evidence in this case. There was no error in this conclusion.

Fond du Lac Denesuline First Nation v. Canada (Attorney General) (Mar. 5, 2012, F.C.A., Blais C.J., Evans and Layden-Stevenson JJ.A., File No. A-402-10) Decision at 193 A.C.W.S. (3d) 1040 was affirmed. 213 A.C.W.S. (3d) 106 (8 pp.).



Referee’s analysis based on incorrect premise properly set aside

Appeal by employer from decision allowing application for judicial review of referee’s decision respecting payment order. Employer provided security services to Halifax airport pursuant to contract with airport authority. Contract was entered into on basis that they would be governed by provincial legislation respecting employment standards. During term of contract, Canada Industrial Relations Board certified Public Service Alliance of Canada as bargaining agent of employer’s employees at Halifax International Airport. Employee filed complaint, claiming he was not being paid for overtime or holiday pay in accordance with standards in Canada Labour Code (“CLC”). Inspector issued payment order. Referee allowed appeal of payment order, concluding that application of CLC to be suspended and employment contracts to be governed by Labour Standards Code (N.S.) (“LSC”), until existing contract expired, at which time CLC would govern. Application judge concluded that referee exceeded jurisdiction in suspending application of CLC. Appeal dismissed. Referee’s decision was unreasonable and was properly set aside. Referee’s analysis based on incorrect premise that employer was subject to provincial jurisdiction up until moment that that jurisdiction ousted by assertion of federal jurisdiction. As board found, contract employees of employer provided services which were vital and integral to operation of airport. During currency of contract, employer therefore subject to federal labour relations jurisdiction respecting operations and undertaking at airport. LSC never applied to employees of employer performing services at airport under contract.

Crouse v. Commissionaires Nova Scotia
(Jan. 10, 2012, F.C.A., Noel, Dawson and Trudel JJ.A., File No. A-63-11) Decision at 198 A.C.W.S. (3d) 678 was affirmed. 213 A.C.W.S. (3d) 111 (11 pp.).

Employment Insurance


Employee’s resignation was term of settlement agreement

Employee was absent from work for medical reasons. Employee filed grievance for employer’s refusal to pay short term illness and injury benefits. There was settlement agreement. Employee was required to resign. Board concluded sums received for relinquishment of right to reinstatement were not deductible earnings. Umpire affirmed board’s decision that moneys paid by employer to employee were paid in consideration for employee relinquishing right to reinstatement. Application for judicial review was allowed. Umpire erred in failing to correct board error. Employee was not wrongfully dismissed. Employee’s resignation was term of settlement agreement. Right to reinstatement did not arise and was not negotiable. Board considered return to status quo was equivalent to right to reinstatement which was not so. Board’s application of erroneous interpretation of law to facts rendered decision unreasonable.

Canada (Attorney General) v. Warren (Mar. 6, 2012, F.C.A., Blais C.J., Evans and Layden-Stevenson JJ.A., File No. A-280-11) 213 A.C.W.S. (3d) 116 (7 pp.).



Council did not provide services typically provided by municipality

Appeal by taxpayer from dismissal of appeals from reassessments. Taxpayer was elected official of Metis Nation of Alberta (“MNAA”), who claimed entitlement to tax-free allowance under s. 81(3) of Income Tax Act (Can.), as officer of incorporated municipality. MNAA incorporated to, inter alia promote cultural, economic, educational, political and social development of, stand as political representative of and pursue legal and constitutional rights of Metis in Alberta and Canada and ensure participation of disadvantaged Metis groups in development of Metis Nation. Appeal dismissed. Judge carefully reviewed evidence concerning objectives, structure, membership and activities of MNAA. No error in concluding that because council did not have powers of self-government or provide services typically provided by municipality, taxpayer not entitled to s. 81(3) allowance. “Municipality” had to be given ordinary meaning of a community having and exercising powers of self-government and providing services customarily provided by such a body. No error in application of geographic standard to definition of municipality. Principle that ambiguities in interpretation of treaties and statutes relating to aboriginal peoples to be resolved in favour of aboriginal peoples inapplicable to Act.

Bellrose v. Canada (Feb. 29, 2012, F.C.A., Sharlow, Dawson and Trudel JJ.A., File No. A-472-10) Decision at 212 A.C.W.S. (3d) 1077 was affirmed. 212 A.C.W.S. (3d) 1071 (11 pp.).
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An estate trustee who took an ‘egregious' position in litigation has been ordered to personally pay more than $140,000 in costs. Will this ruling serve as an appropriate caution to executors on how they conduct themselves in litigation?
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